607 F.3d 655 (10th Cir. 2010), 07-3343, Thomas v. Durastanti

Docket Nº:07-3343.
Citation:607 F.3d 655
Opinion Judge:PAUL KELLY, JR. Circuit Judge.
Party Name:Ricky Lee THOMAS, Plaintiff-Appellee, v. John DURASTANTI, Defendant-Appellant.
Attorney:Thomas G. Luedke, Assistant United States Attorney (Eric F. Melgren, United States Attorney, and Marietta Parker, Acting United States Attorney, with him on the briefs), Topeka, KS, for Defendant-Appellant. Timothy W. Monsees, of Monsees, Miller, Mayer, Presley & Amick, P.C., Kansas City, MO, for...
Judge Panel:Before KELLY, EBEL and GORSUCH, Circuit Judges. EBEL, Circuit Judge, dissenting.
Case Date:June 04, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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607 F.3d 655 (10th Cir. 2010)

Ricky Lee THOMAS, Plaintiff-Appellee,


John DURASTANTI, Defendant-Appellant.

No. 07-3343.

United States Court of Appeals, Tenth Circuit.

June 4, 2010

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Thomas G. Luedke, Assistant United States Attorney (Eric F. Melgren, United States Attorney, and Marietta Parker, Acting United States Attorney, with him on the briefs), Topeka, KS, for Defendant-Appellant.

Timothy W. Monsees, of Monsees, Miller, Mayer, Presley & Amick, P.C., Kansas City, MO, for Plaintiff-Appellee.

Before KELLY, EBEL and GORSUCH, Circuit Judges.

PAUL KELLY, JR. Circuit Judge.

In this interlocutory appeal, Defendant-Appellant John Durastanti, an agent with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (" ATF" ), appeals the district court's decision denying him qualified immunity from Plaintiff-Appellee Ricky Lee Thomas' claim that Agent Durastanti violated Mr. Thomas' Fourth Amendment right to be free from unreasonable seizures when Agent Durastanti shot Mr. Thomas. In an interlocutory appeal from the denial of qualified immunity, this court's jurisdiction is limited to considering

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only legal questions. With that in mind, our jurisdiction arises under 28 U.S.C. § 1291. We rely upon facts established by a video capturing much of the event together with Plaintiff's version of the remaining facts. We hold that a reasonable officer could have reacted in the manner Agent Durastanti did, and therefore he is entitled to qualified immunity. Accordingly, we REVERSE.


" The first step in assessing the constitutionality of [Agent Durastanti's] actions is to determine the relevant facts." Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The parties tell very different versions of the events surrounding the shooting. But in reviewing the district court's decision to deny Agent Durastanti summary judgment on qualified immunity grounds, we must " view the facts and draw reasonable inferences in the light most favorable to [Mr. Thomas,] the party opposing the summary judgment motion." Id. (quotation omitted). An appellate court lacks jurisdiction in an interlocutory qualified immunity appeal to resolve genuine disputes of fact. Behrens v. Pelletier, 516 U.S. 299, 312-13, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); Johnson v. Jones, 515 U.S. 304, 313-18, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). However, even if the district court concludes that controverted issues of fact remain, an appellate court may consider the legal question of whether the defendant's conduct, taken as alleged by the plaintiff, violates clearly established law. Behrens, 516 U.S. at 312-13, 116 S.Ct. 834.

As noted, there is a video recording of a significant part of the incident at issue here. While a court considering a summary judgment motion based upon qualified immunity " usually" must " adopt[ ] ... the plaintiff's version of the facts," that is not true to the extent that there is clear contrary video evidence of the incident at issue. Scott, 550 U.S. at 378-80, 127 S.Ct. 1769 (" When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." ); see also Thomson v. Salt Lake County, 584 F.3d 1304, 1312 (10th Cir.2009). We rely on that video evidence here, while acknowledging that it did not capture everything. Therefore, in addition to relying on the video, we also continue to view the evidence in the light most favorable to Mr. Thomas.1 See York v. City of Las Cruces, 523 F.3d 1205, 1210-11 (10th Cir.2008) (applying Scott to an audiotape of the challenged incident).

Viewed in that light, the evidence 2 establishes the following: Mid-afternoon on January 13, 2006, Agent Durastanti, accompanied by his partner, Agent Stephen Thompson, both dressed in plain clothes, were in an unmarked sport utility vehicle (" SUV" ) driving around Wichita, Kansas, looking for a fugitive. As they did so, the agents noticed a white Lincoln town car speeding toward them and away from what the agents deemed to be a high crime area. The Lincoln did not have a license plate in its tagwell. The agents decided to follow the Lincoln.

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The Lincoln stopped at a house a few blocks away, where one of the three occupants ran inside for a brief moment and then returned to the car, which immediately left. By this time, Agent Durastanti noticed that, while the car did not have a regular license plate, it did have a dealer tag. When Agent Durastanti called a dispatcher to check the registration number on the dealer tag, however, the dispatcher informed him that the registration was " not in file." Aplt.App. 103. Suspecting the Lincoln's occupants were up to no good, the agents continued to follow the car, and Agent Durastanti called for a uniformed officer to pull over the Lincoln. Kansas State Trooper Tom Spencer responded.

The three men in the car-driver Almario Smith, his brother, Plaintiff Ricky Lee Thomas, and a friend, Keith Jones-were actually test-driving the Lincoln, with the permission of the dealership that owned the car. All three men concede that Mr. Smith was speeding, but Mr. Thomas and Mr. Jones contend that Mr. Smith was not otherwise driving erratically. The three men stopped at Mr. Smith's mother's house to see if she was home so Mr. Smith could show her the car. Not finding her at home, the trio left her house soon after arriving. At the time they left Mr. Smith's mother's home, Mr. Smith was driving, Mr. Thomas was in the front passenger seat, and Mr. Jones was in the back seat. Using the freeway, Mr. Smith drove to a Valero gas station/convenience store so Mr. Jones could use the restroom and buy a pack of cigarettes.

The state trooper, the two ATF agents, and the Lincoln all arrived at the gas station at about the same time. Mr. Smith entered the parking lot approximately ten seconds ahead of both the state trooper and the ATF agents. The parking lot was busy and there were few parking spots open. Mr. Smith stopped the Lincoln parallel to the convenience store, not in a designated parking space but between the two driveways that led from the parking lot back onto the street from where the Lincoln had just come. The ATF agents entered the parking lot using the driveway that was directly in front of the Lincoln and parked facing the Lincoln, partially blocking the driveway that was the Lincoln's most natural path out of the lot. The state trooper activated all of his emergency lights as he turned into the gas station, entered the parking lot through the driveway behind the Lincoln and parked a car's length behind and at an angle to the Lincoln.

The ensuing events occurring in the convenience store parking lot lasted approximately thirty-seven seconds. After the Lincoln stopped, Mr. Jones, who was in the back passenger seat, started to get out of the car to go inside the store when he noticed two men approaching with guns drawn and pointed at the Lincoln-the ATF agents, dressed in plain clothes and giving no indication that they were police officers. It is undisputed that Agent Durastanti never identified himself as a police officer. And, although Agent Thompson asserted that he yelled " police," the men in the Lincoln never heard it.

The two armed approaching men, Agents Durastanti and Thompson, yelled for Mr. Jones to get back inside the car. At the same time, the state trooper, who had parked his marked patrol car, with its emergency lights activated, behind the Lincoln, partially exited his patrol car and yelled: " Have a seat in the car. Have a seat in the car." Video at 15:15:34-36. The trooper then yelled at the occupants of the Lincoln to put their hands where the trooper could see them. Mr. Jones reentered the Lincoln. All of this was visible to Agent Durastanti including the trooper's

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marked patrol car, emergency lights, and Mr. Jones' apparent compliance.

Once he reentered the Lincoln, Mr. Jones alerted Mr. Smith and Mr. Thomas about the two approaching armed men. Mr. Thomas feared that the two men intended to rob the Lincoln's occupants or otherwise harm them. According to Mr. Jones and Mr. Thomas, none of the men in the Lincoln noticed the state trooper behind them; Mr. Thomas finally saw the trooper when Mr. Thomas looked back for an escape route away from the two armed men approaching the Lincoln. But he did not have time to tell Mr. Smith, who was driving the Lincoln, about the trooper.

In an effort to get away, Mr. Smith began to drive the Lincoln out of the parking lot, maneuvering around the ATF agents' SUV, which was partially blocking the Lincoln's path. Agent Thompson, who was approaching the driver's side of the Lincoln, had to move out of the way of the Lincoln; as he did so, Agent Thompson hit the Lincoln's front passenger window with the butt of his weapon, trying to break the glass. Agent Durastanti proceeded from the driver's side of the agents' SUV toward the rear of that vehicle and into the path of the Lincoln as it headed around the agents' SUV toward the parking lot exit. Agent Durastanti would testify later that he was concerned that Agent Thompson was in distress, that the Lincoln was coming directly at him and his objective was to stop the Lincoln. Aplt.App. 114-115. Agent Durastanti fired several shots at the driver. The Lincoln, nevertheless, continued out of the parking lot, hitting Agent Durastanti, who rolled off its hood, landed on his feet, turned around and then fired two more shots at the back of the Lincoln as it proceeded down the street away from...

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